The Evolution of Delaware Freezeout Law

  • From UOP to MFW: The Evolution of Delaware Freezeout Law

 Kahan先生の講義や指導教授のゼミでGuhan Subramanian, Fixing Freezeouts, 115 Yale L.J. 2 (2005)を購読したときのことを思い出しました。この分野は、判例法理の紹介が進んでいますし、ある程度研究も進んでいるように思いますが、ただ、その理論的な根拠はそれほど強固ではないように思います。ただ、理論的な研究を進めるためのとっかかりも簡単には思いつきません。2年以内にこの分野かMBOで論文を1つ書きたい(願望)なのですが、どうでしょうか。


Cede v. Technicolor

  • The Foundations of Delaware Corporate Law: Cede v. Technicolor


  • Cede & Co. v. Technicolor, Inc., 542 A.2d 1182 (Del. 1988) (“Technicolor I”)
  • Cede & Co. v. Technicolor, Inc., 634 A.2d 345 (Del. 1993), modified, 636 A.2d 956 (Del. 1994) (“Technicolor II”)
  • Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156 (Del. 1995) (“Technicolor III”)
  • Cede & Co. v. Technicolor, Inc., 684 A.2d 289 (Del. 1996) (“Technicolor IV”)
  • Cede & Co. v. Technicolor, Inc., 758 A.2d 485 (Del. 2000) (“Technicolor V”)
  • Cede & Co. v. Technicolor, Inc., 884 A.2d 26 (Del. 2005) (“Technicolor VI”)

Salzberg v. Sciabacucchi, 2020 Del. LEXIS 100 (Del. Mar. 18, 2020)

RLF writes:

In the highly anticipated decision of Salzberg v. Sciabacucchi, No. 346, 2019 (Del. Mar. 18, 2020), the Delaware Supreme Court, reversing the Delaware Court of Chancery’s decision, confirmed the facial validity of provisions in the certificates of incorporation of Blue Apron Holdings, Inc., Stitch Fix, Inc., and Roku, Inc. requiring all claims under the Securities Act of 1933 (the “’33 Act”) to be brought in federal courts (“Federal Forum Provisions”). Similar provisions have been adopted by dozens of Delaware corporations and are intended to address the inefficiencies of multi-jurisdictional ’33 Act litigation in light of the increasing number of ’33 Act claims filed in state, rather than federal, courts.

via Richards, Layton & Finger

See also Opinion


Governor John Carney on Thursday announced his intention to nominate Justice Collins J. Seitz, Jr. to serve as the next Chief Justice of the Delaware Supreme Court. Justice Seitz — who since 2015 has served as an Associate Justice on the Supreme Court — would replace Chief Justice Leo E. Strine, Jr., who announced his retirement in July. Governor Carney also intends to nominate Vice Chancellor Tamika Montgomery-Reeves to serve as Associate Justice on the Supreme Court, replacing Justice Seitz. (emphases added)

Delaware Business Times writes:

Hamermesh called the nomination of Seitz, whose late father Collins J. Seitz Sr. is held in high regard for his Chancery Court opinion supporting Delaware’s desegregation of schools, for the court’s top seat a “perfectly respectable pick.”

 調べてみましたが、この判決は、どうやらBelton v. Gebhart, 32 Del. Ch. 343, 87 A.2d 862 (Del. Ch. 1952)のようです。著名なBrown v. Board of Education of Topeka, 347 U.S. 483 (1954)の2年前の判決ということになります。衡平法裁判所がこういった人権問題を扱っていた時期があるんですね。

I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.

But my factual conclusion does not dispose of the first question presented. I say this because it is necessary to consider the decisions of the United States Supreme Court construing the Fourteenth Amendment as they apply to this general problem. Specifically, I must decide whether such a finding of fact as I have here made, is a proper basis for holding that such separate facilities cannot be equal. In other words, can the “separate but equal” doctrine be legally applied in the fields of elementary and secondary education?

Plaintiffs say that the situation here presented has never been passed upon by the United States Supreme Court, or the Supreme Court of Delaware, and so is an open question. I agree with the plaintiffs that the Supreme Court has not, so far as I can find, passed upon a case containing a specific finding as to the effect on the Negro, educationally, of State-imposed segregation in education. The question, however, which judicial integrity requires me to answer is this: Has the U.S. Supreme Court by fair or necessary implication decided that State-imposed segregated education on the grammar and high school levels, in and of itself, does not violate the Fourteenth Amendment?

The United States Supreme Court first announced what has come to be known as the “separate but equal” doctrine in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1144, 41 L.Ed. 256. It is, of course, true that that case involved a railway car situation. However, the defendants rely most strongly on Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, [*350] 72 L.Ed. 172, decided by the U.S. Supreme Court in 1927. In that case a Chinese citizen was required to attend an elementary school for Negroes in Mississippi, even though he claimed that he was entitled to admission to the school for whites. The court accepted the conclusion that he was “colored” and stated that the facilities available for Negroes, and therefore available to the Chinese plaintiff, were equal to those offered to the whites. Thus, the question was whether the State was required, under those circumstances, to admit him to the school for white children. The Supreme Court held that the State was not so required, citing many cases for the proposition that such a practice was within the constitutional power of the State, without interference because of the United States Constitution. It is true that there was no proof in that case concerning the effect of such State-imposed segregation on Negroes. But it seems to me that the very use of the “separate but equal” doctrine in an elementary school case, has implicit therein a recognition that in such a case there can be separate but equal educational opportunities in a constitutional sense. Of course, this could not be true were my finding of fact given constitutional recognition, but if it were, the principle itself would be destroyed. In other words, by implication, the Supreme Court of the United States has said a separate but equal test can be applied, at least below the college level. This court does not believe such an implication is justified under the evidence. Nevertheless, I do not believe a lower court can reject a principle of United States constitutional law which has been adopted by fair implication by the highest court of the land. I believe the “separate but equal” doctrine in education should be rejected, but I also believe its rejection must come from that court.

Belton v. Gebhart, 32 Del. Ch. 343, 349-350, 87 A.2d 862, 865 (Del. Ch. 1952 )

via,, Wash. Post, N.Y. Times

株式買取請求権と株価——Verition Partners v. Aruba Networks, 2019 Del. LEXIS 197 (Del. Apr. 16, 2019)

In this statutory appraisal case, the Court of Chancery found that the fair value of Aruba Networks, Inc., as defined by 8 Del. C. § 262, was $17.13 per share, which was the thirty-day average market price at which its shares traded before the media reported news of the transaction that gave rise to the appellants’ appraisal rights. … Because the Court of Chancery’s decision to use Aruba’s stock price instead of the deal price minus synergies was rooted in an erroneous factual finding that lacked record support, we answer that in the positive and reverse the Court of Chancery’s judgment. On remand, the Court of Chancery shall enter a final judgment for the petitioners awarding them $19.10 per share, which reflects the deal price minus the portion of synergies left with the seller as estimated by the respondent in this case, Aruba. …

Likewise, assuming an efficient market, the unaffected market price and that price as adjusted upward by a competitive bidding process leading to a sale of the entire company was likely to be strong evidence of fair value. By asserting that Dell and DFC “indicate[] that Aruba’s unaffected market price is entitled to substantial weight,” the Vice Chancellor seemed to suggest that this Court signaled in both cases that trading prices should be treated as exclusive indicators of fair value. However, Dell and DFC did not imply that the market price of a stock was necessarily the best estimate of the stock’s so-called fundamental value at any particular time. Rather, they did recognize that when a market was informationally efficient in the sense that “the market’s digestion and assessment of all publicly available information concerning [the Company] [is] quickly impounded into the Company’s stock price,” the market price is likely to be more informative of fundamental value. In fact, Dell’s references to market efficiency focused on informational efficiency—the idea that markets quickly reflect publicly available information and can be a proxy for fair value—not the idea that an informationally efficient market price invariably reflects the company’s fair value in an appraisal or fundamental value in economic terms. Nonetheless, to the extent the Court of Chancery read DFC and Dell as reaffirming the traditional Delaware view, which is accepted in corporate finance, that the price a stock trades at in an efficient market is an important indicator of its economic value that should be given weight, it was correct. And to the extent that the Court of Chancery also read DFC and Dell as reaffirming the view that when that market price is further informed by the efforts of arm’s length buyers of the entire company to learn more through due diligence, involving confidential non-public information, and with the keener incentives of someone considering taking the non-diversifiable risk of buying the entire entity, the price that results from that process is even more likely to be indicative of so-called fundamental value, it was correct. …

Under the semi-strong form of the efficient capital markets hypothesis, the unaffected market price is not assumed to factor in nonpublic information. In this case, however, HP had signed a confidentiality agreement, done exclusive due diligence, gotten access to material nonpublic information, and had a much sharper incentive to engage in price discovery than an ordinary trader because it was seeking to acquire all shares. Moreover, its information base was more current as of the time of the deal than the trading price used by the Vice Chancellor. Compounding these issues was the reality that Aruba was set to release strong earnings that HP knew about in the final negotiations, but that the market did not. As previously noted, Aruba’s stock price jumped 9.7% once those earnings were finally reported to the public. None of these issues were illuminated in the traditional way, and none of them were discussed by the Court of Chancery in a reasoned way in giving exclusive weight to a prior trading price that was $7.54 below what HP agreed to pay, and well below what Aruba had previously argued was fair value. (footnotes omitted)

via Steve Hecht, FT, Opinion, DealLawyers, Alison Frankel, Bloomberg Law, Matt Levine, The Chancery Daily, S&C, Potter Anderson, Morris James, CW&T, Ann Lipton, Baker Botts, PLC, Ropes & Gray, WSG&R, WF&G, Fried Frank, PWRW&G, Francis G.X. Pileggi

株式買取請求権と株価——Verition Partners v. Aruba Networks

 Verition Partners v. Aruba Networks事件は、衡平法裁判所から、最高裁判所に上訴されたのですが、この事件について、Jesse M. Fried先生らがamicus briefを提出しています。



via Harvard, Harvard, WF&G, Skadden, Cornerstone, Morris James